Application of Precedent in settlement of civil proceedings in Vietnam

The Council of Judges of the Supreme People’s Court issued Resolution 03/2015/NQ-HDTP concerning the process of selecting, announcing, and applying Precedent, adopting Precedent as a new method for the Court to uniformly apply the law in adjudication. Based on the selection process and the positive feedback from the Advisory Council on Precedent and legal scientists, and the judges directly involved in adjudication, the Supreme People’s Court issued Decision 220/QD-CA announcing Vietnam’s first six cases on April 6, 2016. This can be seen as an important milestone in the process of judicial reform.

Precedent is highly practical because it focuses on resolving specific issues of life rather than addressing problems through broad, abstract theories. Moreover, Precedent quickly and promptly addresses legal loopholes, while regulations in legal documents are stable. There are some new social relations that law has not anticipated yet and thus cannot resolve; in such cases, Precedent can quickly resolve these matters.

Precedent is understood as the arguments and judgments in final court decisions chosen by the Council of Judges of the Supreme People’s Court and announced by the Chief Justice of the Supreme People’s Court as Precedent for courts to study and apply in adjudication. Specifically:

Firstly, Precedent clarifies legal provisions that have different interpretations. In practice, there are numerous instances where the same issue has various interpretations, leading to inconsistent applications among judicial bodies. Therefore, establishing a common, unified interpretation for a specific legal issue in civil cases is not easy. Depending on each specific case, the judge or trial panel will analyze, argue, explain the provisions that have different interpretations, or clarify the reasons for choosing and applying one or several statutes to propose a resolution direction for the civil case.

Secondly, Precedent involves analyzing, explaining legal issues or events as a basis for the Court to identify the principles, handling directions or legal norms to apply. The Court uses customs, analogous legal provisions to make judgments in its rulings. The Civil Code of 2015 prescribes the resolution methods as follows:

- In cases where the parties have not agreed and the law does not specify, customs may be applied;

- Where no customs are applicable, the provisions of the law governing similar civil relations are applied; if analogous law cannot be applied, the basic principles of civil law, Precedent, and fairness are applied.

The Civil Procedure Code of 2015 mandates that courts cannot refuse to resolve civil cases on the grounds that no applicable legal provision exists. The Court shall apply principles prescribed by the Civil Code and the Civil Procedure Code to resolve civil cases.

Thus, Precedent is established to ensure the uniform application of the law in cases where the content of the applicable legal documents does not meet the practical requirements and when there are civil cases where the legal issue needs to be resolved has not been provided for by law or the parties have no agreement.

To apply Precedent, the civil case must meet the following conditions:

- Have basic, objective similarity or analogy with the civil case being resolved with the basic, objective facts of the civil case in the judgment or decision containing the Precedent;

- The legal issue that needs resolving in the civil case under the Court’s acceptance is similar or analogous to the legal issue resolved by Precedent.

The application of Precedent must adhere to the principles under Article 8 of Resolution 03. Eighteen judgments and decisions selected include: 8 civil judgments; 5 criminal judgments; 4 commercial judgments; and 1 administrative judgment to develop into Precedent under Resolution 03/NQ-HDTP of the Council of Judges of the Supreme People’s Court on the process of selecting, announcing, and applying Precedent:

On September 22, 2016, the Advisory Council on Precedent held a meeting to review court judgments and decisions with legal effect proposed to be developed into Precedent and draft Precedent. The Judicial Affair Department and Scientific Management consolidated, summarized, and explained each issue related to the draft Precedent to be expected to be submitted to the Council of Judges of the Supreme People’s Court for approval in early October 2016.

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